1. DATA PROTECTION OFFICE{PMO}
«THE OBLIGATIONS OF A PUBLIC DATA CONTROLLER AND PROCESSOR UNDER THE DATA PROTECTION ACT»
PRESENTED BY THE COMMISSIONER ON TO THE MINISTRY OF HEALTH, 5TH FLOOR, EMMANUEL ANQUETIL BUILDING
TEL: , FAX ,
WEBSITE
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2. DATA PROTECTION OFFICE
The mission of the Data Protection Office is to safeguard the privacy of the processing of personal data effected by data controllers and processors.
The Data Protection Act 2004 (DPA) gives living individuals the right to know what information is held about them.
The Eight Data Protection Principles which may be termed the mantras of data protection are as follows-
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Personal data shall be processed fairly and lawfully.
Personal data shall be obtained only for a specified and lawful purpose, and shall not be further processed in any manner incompatible with that purpose.
Personal data shall be adequate, relevant and not excessive.
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Personal data shall be accurate and, where necessary, kept up to date.
Personal data processed for any purpose shall not be kept longer than is necessary for that purpose or those purposes.
Personal data shall be processed in accordance with the rights of the data subjects under the Data Protection Act.
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5. DATA PROTECTION OFFICE
Appropriate security and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
Personal data shall not be transferred to another country, unless that country ensures an adequate level of protection for the rights of data subjects in relation to the processing of personal data and with the authorisation of the Commissioner.
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6. DATA PROTECTION OFFICE
What does processing, legally speaking, mean?
"processing" means any operation or set of operations which is performed on the data wholly or partly by automatic means, or otherwise than by automatic means, and includes –
collecting, organising or altering the data;
retrieving, consulting, using, storing or adapting the data;
disclosing the data by transmitting, disseminating or otherwise making it available; or
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aligning, combining, blocking, erasing or destroying the data.
The definition in the Act is a compendious definition and it is difficult to envisage any action involving data which does not amount to processing within this definition.
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8. DATA PROTECTION OFFICE
Personal data is defined under the DPA as data, whether recorded electronically or otherwise, which relates to an identified or identifiable living individual, i.e, whose identity is apparent or can reasonably be ascertained from the data.
The definition is also technology neutral.  It does not matter how the personal data is stored – on paper, on an IT system, on a CCTV system etc.
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9. DATA PROTECTION OFFICE
What does sensitive personal data mean?
It means personal information of a data subject which consists of information as to his/her -
racial or ethnic origin;
political opinion or adherence;
religious belief or other belief of a similar nature;
membership to a trade union;
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physical or mental health;
sexual preferences or practices;
the commission of an offence; or
any proceedings for an offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceeding.
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Can sensitive data be processed by a data controller ?
No sensitive data can be processed without the express consent of the data subject or where the latter has made the data public, subject to certain further exceptions as provided in the Act.
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Under what circumstances may the collection of personal data take place by the data controller?
Section 22 of the DPA provides that the data controller shall ensure at the time of the collection of the personal data that the data subject is informed of:-
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the collection, the identity of the controller, the purpose/s of the collection, the recipients of the data, whether the collection is mandatory or voluntary , whether the consent of the data subject would be required for other processing of the data and the right of access of the data subject to the data.
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Are you a data controller?
If you, as an individual or an organisation, public or private, collect, store or process any data about living people on any type of computer or in a structured filing system, then you are a data controller.
In practice, to establish whether or not you are a data controller, you should ask yourself, do you decide what information is to be collected, stored, to what use it is put and when it should be deleted or altered.
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Data controllers are thus, the natural or legal persons, who determine the purposes and the means of the processing of personal data, both in the public and in the private sector.
Where the data controller is using the services of a data processor , he must ensure that the data processor is providing sufficient guarantees in respect of security and organisational measures.
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16. DATA PROTECTION OFFICE
Are you a data processor?
The data processor is the person, other than an employee of the data controller, who has a written contract with the data controller and who processes personal data on behalf of the data controller.
A data processor is also required to take all reasonable steps to ensure that any person employed by him is aware of and complies with relevant security measures.
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17. DATA PROTECTION OFFICE
Where the data controller is using the services of a data processor , he must ensure that the data processor is providing sufficient guarantees in respect of security and organisational measures.
The written contract must provide that the data processor will act only on the instructions received from the data controller and the data processor will be bound by the obligations devolving on the data controller.
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Under section 29 of the DPA, any data processor, who without lawful excuse, discloses personal data processed by him without the prior authority of the data controller shall commit an offence, the penalty of which is a fine not exceeding Rs 200, 000 and imprisonment for a term not exceeding 5 years.
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How is an application made to the Data Protection Office for registration?
It must be made in writing to the Commissioner by filling in the registration form for data controllers which contain the following information as required by the DPA:-
His/her name and address and that of his/her representative.
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A description of the personal data being processed, the purpose for which it is being processed and the category and class of data subjects targetted, where possible their names.
A statement as to whether he/she holds sensitive personal data
A description of the intended recipients to whom the data controller intend to disclose the personal data in his possession.
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A description of the country to which the data controller intends to transfer the data, directly or indirectly.
The types of personal data to be provided on the registration form may range from contact , financial, income, employment, medical, marital details to property owned, qualifications, amount of debt, transaction details.
The purposes for their processing are actually the nature of the business being carried out.
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After the form is duly filled in and approved by the Commissioner and upon payment of the relevant fee, it will then be included in the public register which will be available at the DPO for viewing by the public and a copy may be also made available on request upon the payment of a fee of Rs A list of registered controllers is also available on the website.
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Remember to use a separate application form for each purpose for which you process personal data. A specimen form is also available on the homepage of the website explaining the process of registration.
What if the data controller supplies false information to the Commissioner?
It is an offence and the penalty is a fine not exceeding Rs 100,000 and imprisonment not exceeding 2 years.
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For how long does the registration remain valid?
It remains valid for a period of one year and if registration is not renewed, it will be cancelled.
Is it an offence not to register or to renew registration?
Yes, the penalty is a fine not exceeding Rs 200,000 and imprisonment not exceeding 5 years.
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25. DATA PROTECTION OFFICE
Any change in address is to be notified in writing to the Commissioner within 15 days of the change. Otherwise, it is an offence.
You may also request the Commissioner to remove your name from where it is contained in the register, whenever this is required, for instance when you no longer keep personal data or your company is wound up.
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The DPA was further amended to include changes in particulars of the data controller to be notified in writing within 14 days to the Commissioner.
Remember it is an offence not to register if you are a data controller!
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The Commissioner may refuse an application for registration where:-
she reasonably believes that the details supplied to her by the applicant are insufficient or simply not furnished; or
appropriate safeguards for the protection of the privacy of the data subjects have not been provided by the data controller; or
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the applicant is not a proper and fit person.
The Commissioner must as soon as is reasonably practicable, notify in writing, the applicant of the reasons for refusal and of the fact that he may appeal to the ICT Tribunal.
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What can the Data Protection Office do when a data controller or a data processor contravenes the Data Protection Act?
Where the Commissioner finds that a data controller or a data processor is acting in violation of the Data Protection Act, she may serve an enforcement notice on the data controller or the data processor requiring him/her to take such steps within the period of time specified in the notice which must not be less than 21 days,
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, to remedy the matter and implement the measures recommended by the Commissioner in the enforcement notice.
The data controller or the data processor must then notify the data subject of his compliance with the enforcement notice, not later than 21 days after such compliance.
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31. DATA PROTECTION OFFICE
Is it an offence not to comply with the enforcement notice?
Yes. Any person who does not comply with the enforcement notice and does not have a reasonable excuse for not complying will commit an offence, the penalty of which will be a fine not exceeding Rs 50,000 and imprisonment not exceeding 2 years.
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What are the powers of the Commissioner?
to issue or approve codes of practice or guidelines;
create and maintain a register of all data controllers;
promote self-regulation among data controllers;
take such measures as may be necessary so as to bring to the knowledge of the general public the provisions of this Act;
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undertake research into, and monitor developments in, data processing and information technology, including data-matching and data linkage;
examine any proposal for data matching or data linkage that may involve an interference with, or may otherwise have adverse effects on the privacy of individuals and, ensure that any adverse effects of such proposal on the privacy of individuals are minimised;
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do anything incidental or conducive to the attainment of the objects of, and to the better performance of his duties and functions under this Act.
What are the enforcement powers of the Commissioner?
Where the Commissioner is of the view that the investigation reveals the commission of a criminal offence under the Data Protection Act, she can refer the matter to the Police.
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The Commissioner can also request information from a person whenever it is required for the Commissioner to discharge her functions properly by sending a notice.
The Commissioner can also carry out security checks when she believes that the processing or transfer of data by a data controller will entail specific risks to the privacy rights of the data subjects to assess the security measures taken by the data controller prior to the beginning of the processing or transfer.
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A questionnaire has been prepared by the Commissioner also posted on the homepage of the website to assist data controllers to implement the measures required in their respective organisations.
The Commissioner can also carry out periodical audits of the systems of data controllers to ensure compliance with the data protection principles. A questionnaire has been prepared by the Commissioner to that effect and also posted on the homepage of the website.
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37. DATA PROTECTION OFFICE
An officer of the Data Protection Office may at any reasonable time during working hours enter and search the premises where data processing activities are being carried on.
Who can make a complaint to the Data Protection Office?
Any individual or organisation who feels that his privacy rights with regard to the processing of his personal data may have been prejudiced.
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What does the Data Protection Office do when it receives a complaint?
It investigates the complaint, unless the complaint is frivolous, and as soon as possible, notify the complainant in writing of its decision.
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39. DATA PROTECTION OFFICE
Dealing with Subject Access Requests:-
The key right for the individual is the right of access. Essentially this means that you as data controller have to supply to the individual the personal data that you hold if a valid request is made to you under Section 41 of the DPA.
The data subject must fill in the request for access to personal data form available at the DPO and send it to you.
The time limit for complying with an access request is 28 days.
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40. DATA PROTECTION OFFICE
Minimum security arrangements to be implemented in any organisation would normally include the following physical and technical safeguards:-
Physical safeguards- Access to computers should be restricted to authorised personnel only, premises alarmed and secure when not occupied.
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41. DATA PROTECTION OFFICE
Technical Safeguards- Access to computers to be password-protected, PC workstation to be subject to password-protected lock-out after period of inactivity, anti-virus software to be in use, a firewall to be used to protect systems connected to the internet.
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42. DATA PROTECTION OFFICE
For sensitive data, it is recommended to use additional safeguards such as routine encryption of files and multi-level access control.
In determining the appropriate security measures, in particular, where the processing involves the transmission of personal data over an information and communication network, a data controller must consider the:-
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State of technological development;
The cost of implementing any of the security measures;
The special risks that exist in the processing of the data; and
The nature of the personal data being processed;
as they are elaborated in section 27 of the DPA.
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44. DATA PROTECTION OFFICE
YOU
QUESTIONS
COMMENTS?
ANY
THANK
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